Those hoping his departure will be the start of a trend may be in for a
disappointment

Theresa May could barely suppress a smile of triumph yesterday as she toured the TV studios to soak up the plaudits for finally removing Abu Qatada from the country. She is the sixth Home Secretary in 12 years to face the frustrations of trying to deport the fundamentalist cleric and where her predecessors failed, she had succeeded.

Today, Qatada is in a civilian detention centre on the outskirts of the Jordanian capital awaiting trial for his alleged role in a terrorist conspiracy 15 years ago involving bomb attacks on the American school and the Jerusalem Hotel in Amman; but if anyone thinks his departure has set a precedent or, indeed, changed anything, then they are deluding themselves.

After all, we should not forget that Qatada chose to go. Had his lawyers lodged another appeal, he would still have been here this time next year. In the end, this was his decision, not ours. Doubtless weary of being in and out of prison at least half a dozen times since 2001, he decided to call it a day once the Jordanian parliament had ratified a non-torture treaty, which passed into law last week.

What conclusions, then, can we draw from this bizarre affair? On the one hand, has it not shown Britain at its very best, a stickler for doing the right thing and upholding the rule of law, however big an ass it might be? Or has it merely exposed our weakness, unable to protect our own borders from those who would do us harm, hamstrung by human rights legislation that was never intended for this purpose?

The answer is that it has done both. The British state has been far more scrupulous in upholding its obligations under the European Convention on Human Rights than, say, France, which is also bound by its provisions. While we agonised over Qatada’s deportation, the French had no such qualms. Between 2001 and 2010, the UK ejected nine alleged jihadis deemed to pose a threat to national security, whereas France removed 129 to countries such as Algeria, Tunisia and Egypt, whose judicial systems are even more suspect than Jordan’s. If Abu Qatada had made his way to Paris in the mid-Nineties rather than “Londonistan”, he would have been back in Jordan a long time ago.

And that, of course, is why he came here. To many Islamists fleeing Middle Eastern despotisms in the years before 9/11, Britain was a safe haven precisely because the rule of law was so important and the state could not just do as it pleased. Nearly 20 years ago, Michael Howard, then Home Secretary, tried to deport a Saudi Arabian dissident called Mohammed al-Massari but was thwarted by the courts under human rights laws. Massari is still here, running an Islamist website that in the past has hosted videos of bomb attacks and beheadings. He has also run a jihadi radio station, which, because it is based abroad and does not broadcast here, is beyond the reach of the British authorities.

In 1995, Massari’s deportation was blocked under Article 3 of the European convention, which our courts have interpreted as meaning that no one can be removed to a jurisdiction where they may face “inhuman or degrading treatment or punishment”. It was to overcome this hurdle that a special treaty had to be agreed with Jordan.

But Qatada could have chosen another route – one that has become increasingly popular with criminals and terrorists wanting to avoid ejection. Since he has a wife and five children living in west London, he could have invoked Article 8 of the convention, which respects the right to a family life. He would still be here had he done so. We know this because a convicted terrorist, a 28-year-old Ugandan man described as a danger to the public and the Armed Forces, has been fighting his deportation on precisely these grounds.

Because an immigration tribunal has granted him anonymity, he can be identified only as YM, even though he was named at his trial, where he admitted attending a terrorist training camp. YM was jailed and told he would be deported at the end of his sentence. But the tribunal granted him Article 8 protection because he had a family in Britain. Two of his three children have been born since he began his four-year legal battle to stay in the country, and during that time he has also committed further crimes. A higher immigration court recently upheld the Home Office’s deportation order; but YM will almost certainly appeal and it would come as no surprise if, like Massari, he is never removed.

How can this be sorted out? The Government sets great store by an immigration reform Bill shortly to be put before Parliament, which is designed to limit the avenues of appeal for suspected terrorists and convicted criminals facing deportation. In particular, ministers want to change the relationship between Britain and the European Court of Human Rights. Chris Grayling, the Justice Secretary, yesterday said that the UK might even consider leaving the jurisdiction of the court altogether. But the country would still be subject to the convention itself; it will forever be running up against the way that is interpreted in our own domestic courts, even if it repealed Labour’s Human Rights Act.

At least leaving matters entirely to UK judges would address the objection to a supra-national judicial body dictating who we can and cannot kick out of the country on grounds of national security. Moreover, reducing the opportunities for appeal might also expedite matters; but it would be no guarantee that a future Abu Qatada could not inflict the same humiliation on another home secretary or five.

The fact remains that for as long as we are signatories to the human rights convention, we are treaty-bound to abide by its provisions, whether enforced through Strasbourg or the Supreme Court in the UK. After all, the rule of law is what defines us most as a nation. It is our strength – but in the fight against terrorism, it is also our weakness.